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Swiridowsky v. State

Superior Court of Rhode Island, Providence

February 9, 2018


         Providence County Superior Court (P1-2011-3317A)

          For Plaintiff: Christopher Swiridowsky; Kenneth C. Vale, Esq.

          For Defendant: Daniel Guglielmo, Esq.


          LANPHEAR, JUDGE.


         Facts and Travel

         During the early morning hours of October 28, 2007, the complainant was walking home from downtown Providence after working in a restaurant and meeting with some friends. As she neared her apartment, a car approached and the driver asked if she needed a ride. She alleges that Christopher Swiridowsky forced her into the car, took out a gun, raped her, leaving her naked and grabbing for her clothes on the street. At trial, Mr. Swiridowsky testified that the events were consensual, and that he traded drugs for sex.

         When she reached her home, the police were promptly contacted and within two hours the complainant was at the Women and Infants Hospital for an extensive examination. She did not know the man's name, but four years later when Mr. Swiridowsky was held for another crime, a DNA match identified him as the alleged rapist. Mr. Swiridowsky was indicted on one count of kidnapping, three counts of first degree sexual assault and one count of assault with the intent to commit a sexual assault. After a five day trial in July 2013, a Providence County jury convicted Mr. Swiridowsky on all counts except for the kidnapping.

         On November 18, 2015, Mr. Swiridowsky filed a petition for post-conviction relief. The case was tried over many days from September 2016 through October 2017, without a jury. Mr. Swiridowsky elected to represent himself. Post-trial statements and memoranda were submitted.

         Mr. Swiridowsky's complaints are multi-faceted, but parsing his closing arguments, Mr. Swiridowsky focuses on his allegation that his attorney failed to represent him effectively.[1]


         Standard of Review

         Pursuant to G.L. 1956 §§ 10-9.1-1 et seq., '"post-conviction relief is available to a defendant convicted of a crime who contends that his original conviction or sentence violated rights that the state or federal constitutions secured to him."' Torres v. State, 19 A.3d 71, 77 (R.I. 2011) (quoting Otero v. State, 996 A.2d 667, 670 (R.I. 2010)). The applicant for postconviction relief bears '"the burden of proving, by a preponderance of the evidence, that postconviction relief is warranted."' Page v. State, 995 A.2d 934, 942 (R.I. 2010) (quoting Larngar v. Wall, 918 A.2d 850, 855 (R.I. 2007)).

         The landmark case of Strickland v. Washington, 466 U.S. 668 (1984) established the standard for ineffective assistance of counsel. Our Supreme Court has repeatedly adopted the Strickland rationale. See, e.g., LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996). The applicant "is saddled with a heavy burden, in that there exists a strong presumption that an attorney's performance falls within the range of reasonable professional assistance and sound strategy." Rice v. State, 38 A.3d 9, 17 (R.I. 2012), internal citations omitted.

         A Strickland claim presents a two-part analysis. First, the petitioner must demonstrate that counsel's performance was deficient. That test requires a showing that counsel made errors that were so serious that the attorney was "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687; Powers v. State, 734 A.2d 508, 521 (R.I. 1999). "[A] strong, (albeit rebuttable) presumption exists that counsel's performance was competent." Gonder v. State, 935 A.2d 82, 86 (R.I. 2007). Hence, "[t]his prong can be satisfied only by a showing that counsel's representation fell below an objective standard of reasonableness." Chapdelaine v. State, 32 A.3d 937, 941 (R.I. 2011), internal quotations omitted.

         If counsel's performance is found to be deficient, the petitioner must still clear a second hurdle in the Strickland analysis: He must then demonstrate that his attorney's shortcomings "prejudiced" his defense. Strickland, 466 U.S. at 687. This prong is satisfied only when an applicant demonstrates "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. As Justice O'Connor wrote:

"Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
"These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91.

         An applicant must overcome both Strickland steps in order to mount a successful ineffectiveness claim. Hazard v. State, 968 A.2d 886, 892 (R.I. 2009). ("[T]he applicant's failure to satisfy either prong will result in the denial of the claim of ineffective assistance of counsel.").



         Mr. Swiridowsky made a variety of different arguments-all to suggest that he should be granted post-conviction relief. These were raised in a variety of hearings that were held over the course of a year, often leaving the Court and the State to query which issue was being raised. Therefore, the Court will address all of the arguments in turn in the order in which Mr. Swiridowsky discussed them in his final argument.



         First, Mr. Swiridowsky claims that the bruises on the victim were incurred prior to the night of the molestation, and that his counsel was ineffective for failing to hire an expert witness on bruising. Rather than presenting expert evidence, plaintiff references an article (Sophie E. Grossman, A. Johnston, P. Vanezis and D. Perrett, Can we assess the age of bruises? An attempt to develop an objective technique, Medicine, Science and the Law 170 (2011) (Pl.'s Ex. A). Mr. Swiridowsky failed to obtain an expert witness's testimony, and no expert testimony was admitted at the trial or the post-conviction hearing. Several of the comments in the article seem to disprove Mr. Swiridowsky's claim:

• "Many studies have been carried out investigating the ability of forensic or medical experts to accurately assess the age of a bruise visually, but the consensus is that this is a highly inaccurate method and should therefore not be relied upon in court." Ex. A at 170.
• [After photos were enhanced by Adobe Photoshop CS4] "the individual trend for each bruise over time was highly variable and there was found to be no relationship between the change in RGB [red, green and blue] value and the age of the bruise." Id. at 174.
• "In conclusion, these studies have confirmed the unreliability of expert visual assessment of bruise age, and that RGB analysis of JPEG images corrected for colour balance did not assist with determining the age of bruises. However, the possibility for objective assessment of colour for the purpose of ageing bruises has not been completely rejected owing to the comparable changes in bruise colour seen within subjects." Id. at 176.

         Nevertheless, Mr. Swiridowsky claimed in his final argument:

"The images of green and yellow bruises on [the victim's] body are images indicative of injuries sustained at least 18 hours prior to evidence collection. This position is now supported by scientific documents finally submitted in these post-conviction proceedings by myself and the State on file as Plaintiffs Exhibit 1, State's Exhibit A, documents [my trial counsel] failed to provide my jury with in 2013 . . ." Tr. 10, Oct. 5, 2017.

         The medical article which Mr. Swiridowsky submitted to the Court establishes that the claim Mr. Swiridowsky made during his final argument cannot be scientifically established.

         Nurse Corrado, the sexual assault nurse examiner at Women and Infants Hospital who examined the victim, testified regarding the bruises on the morning of the incident. She was never asked, and did not opine on the age of the bruises. She testified that she observed bruising, took photos (Tr. 176, 179, July 17, 2013), measured them (Id. at 182), and asked the victim about them (Id. at 177). Nurse Corrado concluded "everybody is different, and bruising can show up at different periods" which varies from person to person. Id. at 185:16-17. When examined on cross about the age of a bruise, she repeated "I'm not an expert in bruising. Everybody is different." Id. at 211. Her testimony was consistent with the article's conclusions.

         At the post-conviction trial, counsel testified that he reviewed copies of the photographs with Mr. Swiridowsky pretrial, and reviewed the color photos with Mr. Swiridowsky at the trial, and does not recall the defendant requesting an expert for the bruises (untranscribed testimony, May 10, 2017). While trial counsel may have attempted to offer an article from the internet, pressing for introduction of an unauthenticated document would have been challenging. Extracting an expert opinion without an expert would have been impossible. Further, it disproves his client's contention.[2]

         Mr. Swiridowsky then notes his counsel's failure to object to the photos at trial. Ms. Corrado, the sexual assault nurse examiner, testified the bruises were red and purple on the morning of the incident. (Id. at 182-85). The photos were faded at trial (Id. at 182, 184). Counsel tactically decided not to question the admission of the hospital records, which were likely to come in at some point. Trial counsel effectively cross-examined the nurse on the age of the bruising (getting Ms. Corrado to acknowledge that the bruises appeared yellow, red and brown at trial) (Id. at 210) and reminded the jury of the issue at closing. Counsel performed competently on this issue.

         Mr. Swiridowsky was paying his attorney's bill directly at the time (having released a public defender), and never informed the Court of any financial need or need for an expert until days before trial. Mr. Swiridowsky fails to reference any other case demonstrating that bruises can be aged by their color. As the limited efficacy of an expert for bruising has already been discussed, the Court need not delve into the issue of there being no money to pay an expert.


         Missing Witnesses

         Mr. Swiridowsky suggests his trial attorney failed to locate witnesses, and failed to ask for a continuance to locate them. While the record may show no requests for continuance, counsel clearly indicated his precarious situation to the Court. When the case was reached for trial in July 2013, Mr. Swiridowsky had stopped paying his attorney and had previously refused the assistance of the Public Defender. Mr. Swiridowsky continued to assure his trial attorney that payment would be made. On the eve of empanelment, the Court refused counsel's request to withdraw but reserved its ruling on compensating counsel as a court-appointed attorney. (Tr. 7, July 3, 2013).[3] In sum, the defense attorney was limited in resources because of Mr. Swiridowsky's actions.

         After the trial, Charles Galligan, a private investigator, was able to locate several witnesses for Mr. Swiridowsky over several months after he was compensated by Mr. Swiridowsky. Although some were located, it is unclear what Mr. Swiridowsky could have ...

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